Gouge v. Central Illinois Public Service Co.

• Decision Date: 02 April 1990
• Docket Number: No. 5-89-0122,5-89-0122
• Parties: , 142 Ill.Dec. 563 Johnnie C. GOUGE and Vicki K. Gouge, Plaintiffs-Appellants, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1304

552 N.E.2d 1304

195 Ill.App.3d 1026, 142 Ill.Dec. 563

Johnnie C. GOUGE and Vicki K. Gouge, Plaintiffs-Appellants, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, a Corporation Defendant-Appellee.

No. 5-89-0122.

Appellate Court of Illinois Fifth District.

April 2, 1990.

Rehearing Denied April 27, 1990.

Brad L. Badgley, Heiligenstein & Badgley, P.C., Belleville, for plaintiffs-appellants.

Sorling, Northrup, Hanna, Cullen and Cochran, Ltd., Springfield; R. Gerald Barris and John A. Kauerauf, of counsel, and Bleyer & Bleyer, Marion, for defendant-appellee; James B. Bleyer, of counsel.

Justice WELCH delivered the opinion of the court:

Plaintiffs, Johnnie C. and Vicki K. Gouge, appeal from the dismissal with prejudice of their lawsuit against defendant, Central Illinois Public Service Company, for injuries suffered by Johnnie Gouge when the automobile he was driving collided with a utility pole owned by defendant. On February 10, 1989, the circuit court of Franklin County dismissed with prejudice plaintiffs' second amended complaint for failure to state a cause of action, finding that defendant bore no duty to plaintiff because it could not have reasonably foreseen that plaintiff would drive his vehicle so as to leave the roadway and hit the utility pole in question.

Plaintiff alleges in his pleadings that the accident in question happened in the early morning hours of August 7, 1986. Plaintiff was returning home after visiting several taverns with friends. He was driving his automobile on a rural highway approaching a sharp curve to his right. Plaintiff failed to negotiate the curve, but drove straight ahead, off the roadway, and into a wooden utility pole owned and maintained by defendant. The utility pole was located off the traveled portion of the roadway and had attached to its top portion a 7,200-volt transformer which was, apparently, filled with a flammable substance. Upon collision, the utility pole fractured approximately 10 to 12 feet above the ground. The top portion of the pole with the transformer attached fell onto plaintiff's vehicle and through the windshield. Although the transformer remained attached to the top portion of the utility pole, it apparently broke open, the flammable substance contained within it spilled out and ignited and plaintiff was horribly burned. Plaintiff suffered severe, permanent and disabling injuries for which he seeks damages. Plaintiff's wife, Vicki K. Gouge, seeks damages for loss of consortium.

Plaintiffs' second amended complaint, filed November 21, 1988, alleges that defendant was negligent in the installation of its utility pole in that,

"a) Contrary to ANSI C2, National Electric Safety Code, Rule 261C and 282A, installed and/or permitted to remain in place, the aforesaid pole with a guy wire attached to the accident pole that was out of line with the strain from the wires coming across the road from the take-off pole to the accident pole;

b) Failed to add a second guy wire to the accident pole alongside the fencerow at the scene of the occurrence, extending away from the road;

c) Failed to place a single guy wire in line with the wires coming across the road from the take-off pole."

On January 26, 1989, defendant filed a motion to dismiss plaintiffs' second amended complaint for failure to state a cause of action. The motion argued that the complaint fails to allege sufficient facts to plead an essential element of the cause of action, that is, a duty of care on the part of defendant owed to plaintiff under the circumstances alleged. Specifically, the motion argued that defendant owed no duty of care to plaintiff because it was not reasonably foreseeable to defendant that plaintiff would drive his vehicle in such a manner as to leave the roadway and collide with this particular utility pole. In its memorandum in support of this motion, defendant relied primarily on two cases, Hoffman v. Vernon Township (1981), 97 Ill.App.3d 721, 53 Ill.Dec. 135, 423 N.E.2d 519, and Boylan v. Martindale (1982), 103 Ill.App.3d 335, 59 Ill.Dec. 43, 431 N.E.2d 62. Both of those cases held that a public utility owed no duty with respect to placement of its utility poles to motorists who collided with the poles when their vehicles left the roadway because it was not reasonably foreseeable that the motorists would deviate from the roadway in the ordinary course of travel and strike the utility poles.

Hearing was held on the motion on February 3, 1989, the court taking the matter under advisement. On February 9, 1989, plaintiffs filed a motion for leave to file a third amended complaint. On February 10, 1989, the court issued its written order. Relying on the Hoffman and Boylan cases cited by defendant, the court held that it was not foreseeable that plaintiff would deviate from the roadway in the ordinary course of travel and strike the utility pole in question and that therefore defendant owed no duty to plaintiff. Accordingly, the trial court dismissed plaintiffs' complaint with prejudice for failure to state a cause of action, thereby also denying plaintiffs' motion to amend their complaint. We think the trial court erred in relying on the Hoffman and Boylan cases because they are legally distinguishable from the instant case, and consequently erred in dismissing plaintiffs' complaint with prejudice.

In Hoffman and Boylan, plaintiffs brought actions against utility companies for injuries sustained when vehicles in which their decedent and incompetent, respectively, were traveling left the roadway and collided with utility poles. In both cases, the plaintiffs' complaints alleged no breach of any duty other than the location or placement of the poles. Plaintiffs did not allege any other defect in the utility poles and the injuries were incurred as a result of the impact of the collisions and not from any other alleged defect in the utility poles. Thus, plaintiffs' causes of action were essentially for negligent location of the utility poles.

In both cases the appellate court held that the utility companies owed no duty to the plaintiffs because it was not reasonably foreseeable that the cars would deviate from the roadway in the ordinary course of travel. Those cases established the now-accepted principal of law that a utility company owes no duty to travelers upon a roadway with respect to possible hazards off the roadway unless the traveler may foreseeably deviate from the roadway in the ordinary course of travel. This principle makes sense when one is talking about negligent location of a utility pole in light of the factors to be taken into consideration in imposing a duty, i.e., the likelihood of injury from the existence of a condition, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant. (Hoffman, 97 Ill.App.3d at 724, 53 Ill.Dec. 135, 423 N.E.2d at 521.) While it is common knowledge that vehicles sometimes leave the roadway and...